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Revision as of 00:45, 3 March 2014
Civil law (or civilian law) is a legal system originating in Europe, intellectualized within the framework of late Roman law, specifically derived from the Code of Justinian which was the result of centuries of top down rule.
Ius civile is Latin for "citizen law" and appears in ancient text as ius civile Quiritium. It was in the original republic part of the the body of common laws that applied to Roman citizens and eventually the Praetores Urbani, the individuals who had jurisdiction over cases involving citizens.
The ius gentium or the "law of nations" is not a body of statute law or a legal code, but rather customary law thought to be held in common by all "peoples" or "nations".
Ius naturale is Latin for "natural law", the laws common to all beings.
The prevalent feature at the core of "Civil law" was that it was a codified system which serves as the primary source of law rather than the opinions of the jury as to fact and law. Therefore it is often holds case law to be secondary and subordinate to statutory law. This shift the power of the jury to decide fact and law to the legislature and the judges taking law out of the hands of the people.
Over a period of time if the people are not diligent in retaining their rights by exercising their responsibility the law or what is right will be replaced by the law of the elite. This process is heavily dependent on the contract.
"Civil law stems from Babylon and is inquisitorial, encouraging and requiring the state's violation of one's freedom of conscience. This ever-present trait arises from the Babylonian system's dependence upon the priest's judicial power to examine its subjects in the Babylonian deity's name. In theory, the Babylonian deity, using various names worldwide and personified in the state or its demagogue, invested his priests with the power to examine the consciences of devotees by whatever means necessary, granting absolution or condemnation according to their imperious pleasure. By entrusting themselves to a totalitarian state, the Babylonian settlers established statism."[1]
“Our forefathers, inhabitants of the island of Great Britain, left their native land, to seek on these shores a residence for civil and religious freedom.”[2]
“The laws of England are threefold: common law, customs, and decrees of parliament.”[3]
“The civil law reduces the unwilling freedman to his original slavery; but the laws of the Angloes judge once manumitted as ever after free.”[4]
“The term republic, res publica, signifies the state independently of its form of government.”[5]
Even before the so-called American Revolution, the united States found that, “Natural law was the first defense of colonial liberty.” Also, “There was a secondary line upon which much skirmishing took place and which some Americans regarded as the main field of battle. The colonial charters seemed to offer an impregnable defense against abuses of parliamentary power because they were supposed to be compacts between the king and people of the colonies; which, while confirming royal authority in America, denied by implication the right of Parliament to intervene in colonial affairs. Charters were grants of the king and made no mention of the parliament. They were even thought to hold good against the King, for it was believed that the King derived all the power he enjoyed in the colonies from the compacts he had made with the settlers. Some colonists went so far to claim that they were granted by the ‘King of Kings’-and therefore ‘no earthly Potentate can take them away.’”[6]
John Adams said that when the grantees of the:
- “Massachusetts Bay Charter carried it to America they ‘got out of the English realm, dominions, state, empire, call it by what name you will, and out of the legal jurisdiction of the Parliament. The king might, by his writ or proclamation, have commanded him to return; but he did not. By this interpretation, the charters accorded Americans’ all the rights and privileges of a natural free-born subject of Great Britain and gave colonial assemblies the sole right of imposing taxes.”[7]
“Accordingly, when Americans were told that they had no constitutional basis for their claim of execution from parliamentary authority, they answered, ‘Our Charters have done it absolutely.’ ‘And if one protests,’ remarked a Tory, ‘the answer is, You are an Enemy to America, and ought to have your brains beat out.’[8]”[9]
Madison clarified our status in this “a Republic with federal form.” “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of society against the injustice of the other part. Different classes of citizens. If a majority be united by common interest, the rights of the minority will be insecure. In a free government the security for civil rights must be the same as that for religious rights.”[10]
But doesn’t the Constitution guarantee a ‘Republican Form of Government’?[11]
A Democracy is not the same as a republic. In fact the evolution from one to another was warned against by early Americans.
Before we go further, it should be understood that the original republic was one in which a freeman was free from civil authority and religiously allowed to accept or reject his God as King. The word “republic” was used because those early pilgrims and separatists knew its origins. It is a shortened form of the Latin idiom “Libera res Publica”, meaning “free from things public.” The heads of the government were “titular” in authority, meaning that they held authority “in name only.” In an indirect democracy, the mob elects those that govern the whole, while, in the republic, you only elected representatives with a limited authority.
“Before the Norman conquest of England in 1066, the people were the fountainhead of justice. The Angloe-Saxon courts were composed of large numbers of freemen and the law which they administered, was that which had been handed down by oral tradition from generation to generation. In competition with these popular, nonprofessional courts the Norman king, who insisted that he was the fountainhead of justice, set up his own tribunals… The angloe-Saxon tribunals had been open to all; every freeman could appeal to them for justice.”[12]
"In the civil law world, the movement toward the extremes of the inquisitorial model was impelled by the revival of Roman Law. The influence of canonic procedure, and, most important, the rise of statism...the prince as the personification of the state had the power to punish and pardon unrestricted by rules..." [13]
This conflict between the Common Law and the Civil Law was one of the most important factors motivating the original immigration to the Americas for those seeking civil and religious freedom. After all, it was the oppressive civil laws handed down by the tyrannical kings and weak parliaments that was imposing the religious persecution on the people. But it was the religious reformists, trying to right the unrighteous practices of that system, that had stimulated the governments religious and civil oppression.
“When the common law and statue law concur, the common law is to be preferred.”[14]
“Law, as distinguished from equity, denotes the doctrine and the procedure of the common law of England and America, from which equity is a departure.” [15]
Equity is a “body of rules existing by the side of the original civil law, founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.”[16]
First, “equity” is not law in itself, but it only exists “by the side of” the law, and the civil law, at that. “‘Civil Law,’ ‘Roman Law’ and ‘Roman Civil Law’ are convertible phrases, meaning the same system of jurisprudence.”[17] Second, it should be noted that it only claims to supersede the civil law.
"If we search out the origins of Roman Law, we must study Babylon..." [18]
Efforts to bring in Commercial Law, Equity and the Roman Civil law were here from the beginning. It is now Roman Law that dominates the legal system and the courts in America. In Black’s law dictionary, found in every law office of the democracy, there is hardly a page that does not make reference to its Latin origins of legal principles and precepts.
“The laws of nature are unchangeable.”[19]
The word, “marriage, as distinguished from the agreement to marry and from the act of becoming married.” It “is the civil status of one man and one woman united in law for the discharge to each other and the community of duties legally incumbent on those whose association is found on the distinction of sex.”[20]
First, it is clear that marriage is distinguished, essentially different, from both the “agreement to marry” and the “act of becoming married.” Secondly, marriage is a civil status. “Civil” is a word used in “contradistinction to military, ecclesiastical, natural, or foreign; thus, we speak of a civil station, as opposed to …an ecclesiastical station”[21]
It also explains that the obligations of the man and woman are not merely to each other, but also to the “community”, and that these civil duties are “legally incumbent.” An “incumbent” is then defined as, “A person who is in present possession of an office; one who is legally authorized to discharge the duties of an office.”[22]
The words “person” and “individual” are not synonymous. “Person” being defined as, “a man considered according to the rank he holds in society, with all the right to which the place he holds entitles him, and the duties which it imposes.”[23] The word “individual” in the book “Language,” found in the Volume Library, is treated as a word “frequently misused” and clarifies its meaning with the statement, “The word (individual) should not be used in the mere sense of person. The word is correctly used in ‘Changes both in individuals and communities.’”
“Every person is a man, but not every man a person,”[24]
“Man is a term of nature; person, of the civil law”[25]
Today’s Relationship of Marriage is neither natural, remembering that the law of nature is “divine will,” nor is it ecclesiastical, which is “distinguished from ‘civil’ or ‘secular,’”[26] but it is civil.
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Footnotes
- ↑ Brent Allan Winters, Excellence of the Common Law, Compared and Contrasted with Civil Law in Light of History, Nature and Scripture, Page 63, 2008.
- ↑ Representatives of the united colonies on July 6, 1775.
- ↑ Leges Angliæ sunt tripartitæ: jus commune, consuetudines, ac decreta comitiiorum.
- ↑ Libertinum ingratum leges civiles in pristinalm servitutem redigulnt; sed leges angiae semel manumissum semper liberum judicant. Co. Litt. 137.
- ↑ Bouvier’s Vol.1. page 13 (1870).
- ↑ The Other Side of the Question, by a Citizen, New York, 1774, 16.
- ↑ Principles and Acts of the Revolution, edited by H. Niles, 16.
- ↑ Pennsylvania Journal and Weekly Advertiser, September 4, 1766, Supplement.
- ↑ 174-175 Origins of the American Revolution by John C. Miller.
- ↑ Federalist LI.
- ↑ Constitution of the United States, Section 4.
- ↑ Clark’s Summary of American law. Common Law Chat 1 pp.530.
- ↑ John Henry Merryman, The Civil Law Tradition, 2nd Ed. 1985.
- ↑ Coke,71.
- ↑ Bouvier’s Law Dictionary.
- ↑ Maine, Anc. Law, 27.
- ↑ Black’s Law Dictionary 3rdp 332
- ↑ Sir Frederic Pollack and Frederic William Maitland, The History of the English Law Before the Time of Edward I, page 561, Cambridge Univ. Press 1968.
- ↑ Jura naturæ sunt immutabilia. Branch, Princ.; Oliver Forms, 56.
- ↑ Black’s 3rd Ed. p. 1163.
- ↑ Civil. Black’s 3rd ed. p.331.
- ↑ State v McCollister, 11 Ohio, 50; State v. Blackmore, 104 Mo. 340, 15 S.W. 960. Black’s 3rd Ed. p.947.
- ↑ Black’s 3rd. Ed. p. 1355.
- ↑ Omnis persona est homo, sed non vicissim.
- ↑ Homo vocabulum est; persona juris civilitis. Calvinus, Lex.
- ↑ Ecclesiastical. Black’s 3rd Ed. p. 640.